Tuesday, April 12, 2011

The Presumptive Father Doctrine Under Family Code Section 7611(d): Where Behavior May Trump DNA

Who is a “parent” in the eyes of California law? Is this title a result of behavior? Is it a matter of biology? Or is it a combination of the two? What is required to assert one’s rights as a parent?

In California, parental rights and responsibilities are most closely tied with one’s DNA. In other words, a person’s biological make-up typically determines whether or not he or she is deemed a “parent.” This is especially true when there is no marital relationship to establish a presumption of parentage (under Family Code Section 7540, “the child of a wife cohabiting at the time of conception with her husband, who is not impotent or sterile, is conclusively presumed to be the child of the marriage”).

When two parties are unmarried, and have shared a sexual relationship that may or may not have resulted in children, and there is no Judgment of Paternity in existence, at least one party will typically insist on a DNA test to prove (or disprove) that a party is a biological parent of the minor child(ren) at issue. To do this, the party requesting the blood test must 1) have “standing” to request the blood test, pursuant to Family Code Section 7611 and 7612, 2) the blood tests must be done pursuant to a court order and 3) the motion for blood tests must be filed within two years of the child’s birth.The DNA testing process is somewhat expensive, costing in the neighborhood of $500.00 to $1,000.00 for testing of three parties (mother, child, and presumed father). The results from this analysis are helpful to the court and the parties, but not necessarily conclusive. They can provide closure for some parties who are not interested in accepting the responsibilities of parenting, but may also disappoint a party who had hoped for the joys of parenthood and of having various parental rights.

The courts have recognized that biology may only be a part of the overall analysis in determining parental rights. Within the Family Code, there is a specific provision one can use to bolster a non-biological parentage claim. The language can be found in Section 7611(d), within a Chapter of the Family Code entitled “Parent and Child Relationship.” The applicable section states that “A man is presumed to be the natural father of a child if he meets the conditions provided…He receives the child into his home and openly holds out the child as his natural child.”

This section allows any interested party to assert a claim as a presumptive father despite the fact that he may already know that he is not the biological father of the child at issue. In order to support a contention that one has received a child into one’s home, a party should be ready to show that he has cohabitated with the child at issue, although this is not necessarily required. He should also be prepared to substantiate financial and emotional support of the minor. This can be done in various ways: 1) bank and credit card statements to show payment for the child’s expenses, 2) payment of official child support orders (if ever mistakenly filed for by another party, 3) birth certificate records, 4) baptism/other cultural or religious records, 5) tax returns showing a child claimed as a dependent, 6) health insurance coverage for a child, 7) testimony by any family members/friends/others who have witnessed his decision to hold the child out to the world as his own.

Often times, there may be a competing presumed father claim. If you are a non-biological father attempting to be named the natural father, you may be forced to contend with a biological father’s claim. If the court has two separate and distinct claims of fatherhood to resolve, it must settle on one. In other words, there cannot be two natural fathers. In such a case, the court must weigh the competing presumptions, and the presumption that is founded on the weightier considerations of policy and logic will control. In reality then, the “natural parent” status may have little to do with nature.

In deciding whether to apply the presumptions of parentage, the courts weigh and balance on a case by case basis.Key factors in this balancing include whether there is a marital family unit remaining to be protected, whether there is an existing parent-child relationship between the child and the presumed father, or instead, a third person with alleged presumptive (or biological) parentage status, and whether the child’s interest in receiving support would best be promoted by applying or not applying the presumption.

The bottom line is, if you want to establish yourself as a child’s father, but do not live with child’s mother, have not provided support for the child, have not “held yourself out” to be the child’s father, have not signed a voluntary declaration of parentage, are not on the child’s birth certificate, do not claim the child as a dependent on tax returns and the like, you may not have the necessary “standing” to file for paternity and request a blood test.In that circumstance, it is best to enter into an agreement in court with child’s mother to have the testing done (offering to pay for the expense of the testing) in order to determine paternity.

Friday, August 21, 2009

You will find that all parties have to file current income and expense declarations. What are these? What is considered current? This is what the rules actually say:

Current” declaration: Regardless of when the OSC or motion is filed, a party's income and expense declaration must be “current” as of time of the hearing. [Marriage of Tydlaska (2003) 114 CA4th 572, 575, 7 CR3d 594, 596—support modification properly denied outright because applicant spouse had no “current” income and expense declaration on file]

An income and expense declaration is “current” if completed within the past three months unless the pertinent facts have changed at the time of the hearing (in which case, a new declaration must be prepared). [CRC 5.128(a); see S.D. Super.Ct. Rules, Div. V, Fam. Law Rule 5.6.2—“current” income and expense declaration must be executed within 90 days of hearing]

California Rules of Court 5.128

(a) A current Income and Expense Declaration (form FL-150) or a current Financial Statement (Simplified) (form FL-155), when such form is appropriate, and a current Property Declaration (form FL-160) must be served and filed by any party appearing at any hearing at which the court is to determine an issue as to which such declarations would be relevant. “Current” is defined as being completed within the past three months providing no facts have changed. Those forms must be sufficiently completed to allow determination of the issue.

(b) When a party is represented by counsel and attorney's fees are requested by either party, the section on the Income and Expense Declaration pertaining to the amount in savings, credit union, certificates of deposit, and money market accounts must be fully completed,